Badri & Faizin

[2021] FCCA 1738

FEDERAL CIRCUIT COURT OF AUSTRALIA

Badri & Faizin [2021] FCCA 1738

File number:

MLC 4204 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

7 July 2021

Catchwords:

FAMILY LAW – interim parenting – review of senior registrars decision – family report with reliance upon psychometric testing – children live with father – spend time with mother – allegations of family violence – incident at changeover – orders made

Legislation:

Family Law Act 1975 (Cth) s 60CC

Evidence Act 1995 (Cth) s 131

Cases cited:

Goode & Goode [2006] FLC ¶93-286

Re K (1994) FLC ¶92-461

Number of paragraphs:

29

Date of hearing:

7 July 2021

Place:

Melbourne

Counsel for the Applicant:

Ms H Bonney

Solicitor for the Applicant:

Ebejer and Associates

Counsel for the Respondent:

Mr M Grant

Solicitor for the Respondent:

Bentley’s Barristers and Solicitors

ORDERS

MLC 4204 of 2021

BETWEEN:

MS BADRI

Applicant

AND:

MR FAIZIN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	7 JULY 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.All previous parenting orders be discharged.

2.The mother and father have equal shared parental responsibility in relation to the following the children:

(a)X, born 2004 ("X")

(b)Y, born 2008 ("Y")

(c)Z, born 2011 ("Z")

3.The children live with the father.

Spend time arrangements

4.The children spend time and communicate with the mother as agreed in writing between the  parties and failing agreement as follows:

(a)X and Y for a period of 6 months from the orders made on 28 May 2021 every Saturday commencing at 2:00pm until 6:00pm:

(b)Z spend time and communicate with the mother each Friday from after school or 3:30pm if it is a non-school day until 6:00pm on the Saturday:

Ramadan and Eid Days

(c)All three children as follows:

(i)On the second and fourth Sunday of Ramadan to breakfast with the mother, commencing on 5:00pm until 8:00pm.

(ii)Commencing on 7:00am until 12:00pm on Eid Days.

Changeovers

5.(a)       Changeover to take place on school premises on school days and on non-school days       shall take place outside the Suburb A Police Station

(b)For non-school changeovers, each parent shall attend changeover and if accompanied then with no more than one other person and both parents and their one other person must remain seated in their cars and the child and/or children shall walk from car to car to effect changeover. 

(c)When the Mother attends school to collect Z on Fridays, the Father not attend at or nearby the Mother's collection of Z

Medical and education

6.Each of the parents ensure that when the children are in their care that:

(a)The children attend all reasonable scheduled appointments with any treating medical practitioner or health professional or allied health professional, and follow any recommendation made in respect of the children's requirements and treatment;

(b)The children take all prescribed medications in accordance with the prescription; and

(c)They children attend current extra-curricular activities that the parties have agreed to in writing.

7.The parents keep each other informed of any significant injury or illness suffered by the children when in their respective care, as soon as practicable, advising the other of:

(a)The nature of the significant injury or illness;

(b)The names of all relevant treating medical and like practitioners;

(c)The treatment given to date and any information in his or her possession about the diagnosis;

and that each parent be authorised and these orders shall act as authority for same to contact the child or children's treating practitioner to seek further information and advice.

8.The parties equally share any costs of the child's medical, dental and optical treatment equally, unless otherwise agreed in writing between the parents.

Other

9.Each parent shall:

(a)Keep each other informed of their current address, email and telephone number, and inform the other parent of any change within 48 hours of change;

(b)Provide the other parent with copies of all academic reports, notices and photographs in relation to the children;

(c)Communicate with the other parent either by telephone, in writing or by personal attendance, in respect to the children's progress in school;

(d)Subject to any school policy, allow the other parent to attend all functions to which parents are normally invited.

10.Each parent, by themselves, their servants and/or agents be restrained from denigrating, abusing, insulting or belittling the other parent or his/her extended family to or in the presence and/or hearing of the children.

11.The parents communicate by SMS or email in relation only to the care and welfare of the children only.

Family therapy, psychological support and other programs

12.Family therapy be engaged with the mother, X and Y with an agreed psychologist and failing agreement to the recommendations made by the family report writer, on an ongoing basis pursuant to the recommendations of the psychologist. The cost of the sessions are to be borne equally by the mother and the father

13.The mother attend upon a psychologist of her choice for psychology sessions on an ongoing basis pursuant to the recommendations of the psychologist. The cost of the sessions are to be borne by the mother. The mother shall notify the father's solicitor and the Independent Children's Lawyer of the name and contact details of the psychologist she selects to attend.

14.The mother complete Tuning in to Kids program and to upon completion provide the father with a copy of the certificate.

15.The father attend upon Dr B for a once off psychology session. The cost of the sessions are to be borne by the father.

16.Pursuant to s.68L(2) of the Family Law Act 1975, the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children's lawyer file a Notice of Address for Service;

(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children's lawyer copies of all relevant documents relied upon;

(c)the independent children's lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

(d)the independent children's lawyer prepare a minute of the orders he or she will recommend be made as final orders.

17.The Independent Children's Lawyer shall be at liberty to apply at short notice on any matter as she or he sees fit.

18.The matter remain listed for interim defended hearing before Senior Registrar Hoult on 5 November 2021 at 10:00am.

19.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Badri & Faizin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are settled ex tempore reasons.  The matter concerns the children X who is aged 16, Y who is aged 13 and Z who is nearly 10.  The Applicant Mother is Ms Badri (‘the Mother’) and the Respondent Father is Mr Faizin (‘the Father’). 

2. This is the hearing de novo of an application to review a Senior Registrars decision.  By the time I came to hear the application, further events had overtaken the state of the evidence as it was before the Senior Registrar.  I have used the impugned orders as the matrix for my orders. 

3. It is a tragic case that comes before me.  I am giving my short reasons now in a busy duty list with two matters to go and it is 4.20pm.  I have been assisted by helpful submissions by Mr Grant, counsel for the Father, and Ms Bonney, counsel for the Mother.  I am to take into account the best interests of the children.  In particular, matters that I must consider as primary considerations are the benefit of a meaningful relationship and the need to protect the children from psychological harm, being exposed to abuse, neglect or family violence. 

4. In other words, I am to consider a meaningful relationship between the child and the parents if it is safe to do so.  I am to consider it, not to make orders that compel it to happen and there are additional considerations, being children's views and the nature of the relationships with the children. 

5. The parties' counsel have addressed me on the basis that it is taken as read that all of the matters under 60CC(3) of the Family Law Act 1975 (Cth) (‘the Act’) that are relevant would be considered and the evidence that I have before me are the parties' competing versions of events and this is an interim hearing.

6. I am sure counsel will explain to their clients the consequences of paragraphs [81] and [82] of Goode & Goode [2006] FLC ¶93-286 which I recite:

   [81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [82]     In an interim case that would involve the following:

   (a)       identifying the competing proposals of the parties;

   (b)       identifying the issues in dispute in the interim hearing;

   (c)       identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

7. It is also the case, whilst I cannot ordinarily determine disputed facts on an interim hearing, is that it does not follow that all disputed evidence is of the same weight. 

8. Mr C's (clinical psychologist) observations are put into contest by Ms Bonney for the Mother.  Mr C's observations are untested and controversial.  However, they do not disappear.  He is a clinical psychologist.  He was retained jointly by the parties.  As a result of his observations, one of the parties disagrees with him.  That does not mean he is wrong.  He has adopted a methodology using expertise in psychometric testing.  I will quote the paragraph where he describes that. 

   Single expert family reports involve family evaluations that employ a structured professional judgement format, assessing the family functioning through a family needs and strengths framework.  Family evaluations follow a semi-structured approach, following methods well-established in psychological practice to assess individual and family functioning, with a specific focus on issues relevant to the family court and the family law act section 60cc (3).  Family functioning is evaluated through assessment of structured and unstructured interactional sequences, assessing interactions on a series of relationship and behavioural factors.  Parenting skills are assessed through interviews, history and interactional observation.

   Adult assessment involves addressing cognitive and intellectual functioning, personality functioning, family of origin, historical issues, behavioural analysis of psychological problems, and relationship history.  Details of individuals’ lives are generally based on self-report, and their accuracy is dependent on the individual.  A semi-structured clinical interview and structured clinical interview for DSM-5, and a mental state examination are undertaken.  Formal psychometric assessment is undertaken as required in accord with the evaluation contract.  The scope of the evaluation, including issues addressed and the practicalities of the assessment, is related to the evaluation contract.  Due to the amount of information obtained in these evaluations, details are summarised to focus on the central issues of functioning and to address issues relevant to this assessment.

   Specific family court issues are assessed, including attitude to the ex-partner, openness to change, and understanding of the needs of the child, organisational strength and emotional maturity.  Attachment style is assessed, as well as child-parent relationship. 

   Child evaluations assess cognitive level and style, relationships with family members, attachment style, level of attachment to caregivers, psychological functioning, and presence of emotional or behavioural difficulties, emotional and behavioural maturity and independence.  Issues of coaching, influence, and coalitions are evaluated.  If there are allegations regarding abuse, a standardised, best-practice protocol is employed in assessing children around abuse issues.  Various methods are able to be used in testing the validity of self-report.

   The family report produced from the evaluation cannot list or articulate each observation, statement or issue for each person assessed, or all the information provided by the family or the court.  Collateral information is considered on a case by case basis.  It should be noted that statements made by non-independent parties on affidavit materials do not necessarily represent psychological data and are allocated weight accordingly.  The report distils the central issues considered relevant by the assessor for the child(ren)’s care into a series of recommendations, which are not exclusive of other recommendations.

9. The circumstance that a methodology that is different to what is seen on many occasions does not mean it is wrong.  Psychometric testing is also frequently used.  The issue is the weight that can be given to it.

10. Apart from the psychometric testing, I have the circumstance where the children, X, Y and Z, were each interviewed for an hour by Mr C who was alert to the issue of alignment of children with parents. 

11. What is most significant to me, in terms of the current dispute and the events of 29 May 2021, is the observations in regard to Z and the observation at paragraph 110 of the interaction between the elder children with their parents. 

    110.Whilst the elder children are somewhat aligned with the father, in my opinion this reflects a greater sense of connection with him, over that of parental influence. Observed interactions between the elder children and their parents were markedly disparate. Aside from allegations of the mother’s aggression, the elder children and the father engaged mutually. Dialogue was more jovial and affection was apparent. The mother’s interactions appeared laboured and received minimal response. For this reason, the statements of the elder children should be considered to offer some relevance.

12. The psychologist made observations about Z at paragraph 53:

    53.Z’s description of his family arrangements and relationship indicates the following:

    •Z reported that he is in grade four. He reported attending a private school. He said he liked his school and had good friends…

    •Z reported that he lives with his mother, and that sometimes he and his mother stay with his cousins. He reported that “the police came and told us there would be a divorce”. Z reported that a divorce meant that his mother and father “don’t live together anymore”. He said that the police came because his father “locked us out of the house”. Z reported that he witnessed his mother “banging on the door”.

    •Z did not described any matters of concern in the family home from his perspective. He reported that his father went to work and took him to soccer. He said that that his mother remained at home and took him to the shops. He reported that his sisters were often in their rooms, and that he played with his brother and cousins.  He said the home was quiet.  Z reported that his mother and father talk to him if he gets in to trouble, and that sometimes he gets sent to his room.

    •Z said that he wants to rotate between his respective parents’ homes each day. Z’s report was unsophisticated in the context of his age and level of development, but seemed to indicate that he wished to spend equal time with each parent. Z’s overall disclosures did not indicate abuse or neglect. Z appears to be comfortable in the care of either parent.

1. The psychologist made observations about Y at paragraph 49:

   49.Y’s description of his family arrangements and relationships indicates the following:

   •Y reported that he is in year 8…

   •… He reported that his mother would often get angry and yell, and that his mother argued with his sisters frequently. Y reported that his father “didn’t really yell much” and that his father tried to calm disagreements.

   •Y reported that he was living with his father because his mother had hit him. He reported that he was scared of his mother when she was angry. Y disclosed that his mother has hit him previously when she was angry. Y reported that his parents had separated following an argument over his sisters sleeping over at their aunt’s home…

   •Y reported that he does not wish to see his mother currently. He reported that he would like to re-engage his mother in the future, but would like his sisters to be with him…

2. On this interim hearing, in regard to the child X and Y, significant weight must be given to their wishes given their ages.  It may be on a final hearing the Mother is able to demonstrate that those wishes have been improperly, unduly or inappropriately influenced by the Father.  However, I cannot find so at this hearing.  I am alert to the allegation that she makes in that regard but I have a 13 and a half year old boy making the statements at paragraph 49 in the second and third dot point. 

3. In those circumstances, I cannot say that the orders that the Mother seeks are in Y's best interests at this time.  In regard to Z and I would say that ordinarily children should be treated together and go together.  In this case, we have a complete crisis and a breakdown of family relationships with a dispute as to why that is so.

4. The Father's case, and indeed the opinion of Mr C, would primarily put the responsibility for that upon the Mother and her interaction with the children over many years. 

   THE EVENTS OF 29 MAY 2021

5. Very significant additional information is available to me that was not before the Senior Registrar and in particular, the events of 29 May 2021 (at the first Location D changeover).  Dealing with that day, each side alleges that the other one brought along a crowd of adults, and literally car loads of adults, for a face-off in a scene where it is common ground that Z did not leave the car to go with his siblings to the Father.  The reasons for that, according to the Mother, is that Z was upset to an extreme degree by the crowd, by the abuse that she says she suffered from the Father's crowd and from the circumstance (I infer) of leaving her care. 

6. It is common ground that Z then spent something like an hour and a half or two in the Location D toilet and that the police attended.  Each party says he or she called the police.  I have further evidence of who each party says came along.  ‘M1’ is a list of parties that attended on the Father's behalf and the Father accepts (after I pressed his counsel for instructions) that all of those people were there at some point, but for different purposes and different times.  Location D is popular and there is only one Location D in Suburb E.  Nonetheless, it is remarkable that so many people related to or connected to the Father would be at Location D at that crisis point.

7. The Mother asserts that she was only there with her sister, Ms F.  The Father asserts and has named in F1 when I pressed for it, a list of about 20 people said to be there whereby the abuse was rained down upon he and his children and he identifies the makes of the seven motorcars that he asserts were there.  I cannot make any judgements about that, save that either version informs that, sadly, this family cannot be trusted to have a changeover of their children at Location D.  It is appalling. 

8. Hence, the order must be changed so that the changeover is at the police station.

9. It also calls for a further order that the parents not get out of the motorcar when attending the police station and, further, that either parent is only to bring no more than one other adult or observer or supporter to any changeover.  However, it is - I draw the inference that it may well be there is a very significant impact upon Z of being separated from, what had been, his primary caregiver up until that time.  He has not expressed any fear of his Mother to the report writer.  If the Father's case is right, that may be a function of age.  By that, I mean that as the children get older and seek more independence, the conflict between the parent and the child can potentially increase. 

10. At this point in time, in the circumstances where the mother has been significantly involved in Z’s care, in my view, the different observations of Z of Mr C combined with the serious breakdown in the relationship between the Mother and the older children, and the Location D stand off with Z in the toilet, tragically call out for Z to be treated differently.  It is put by the Father that Z will simply not be safe with his Mother unless the older girls are there.  I will not recite the chronology of events but a lot was happening in that family between the police attending on 11 January and Y and Z being retained in the Father's care when they had gone to visit him in April and the issue of the proceedings on 20 April 2021. 

11. I place only a little weight on the Father's communication to the Mother of 15 March which, I find, is a communication subject to 131 of the Evidence Act 1995 (Cth) and then, in regard to section 131(2)(g), were it not admissible, I would be misled as the inference and basis that I would otherwise be operating on is that the Father had a fear for Y and Z for the period between January and April. On his case that was heightened by the revelations of the children to him when they came to stay with him on that occasion in April. Nonetheless, to propose equal time, whether without prejudice or not, is inconsistent with the Father having a fear for Z going back weeks or months, at least.

12. So in all of those circumstances, I determine that Z’s time with the Mother should be considerably more than his siblings.  I am not dismissive of, or find there is nil risk to Z, but I am balancing risks here.  In light of Mr C’s report, there is a risk that the Mother's behaviour could deregulate or in old-fashioned terms lose her temper or not be able to cope and mete out severe discipline and/or emotional blackmail to Z.  The other risk that I must balance is the emotional trauma to Z of having a relationship with one of his parents abruptly severed. 

13. So in all of those circumstances, order 2 will not be changed.  The children will live with their Father, but order number 3 will be changed to the effect that Z, in each week, will spend time with his Mother from after school Friday, not Thursday, as I discussed  after school Friday until the end of the time.  That is the 2.00pm to 6.00pm time and Z will return to his Father's care at 6.00pm.  And the other children, Y and X coming to their Mother's care at 2.00pm each Saturday.  This way, Z will be spending one night overnight each week with his Mother, Friday night and will be returning to his Father of a Saturday at 6.00pm.

14. If the Mother's case is right, that will not fix Z’s trauma, however, it may assist him cope.  If the Father's case is right, the Mother will be expected to care for Z from after school Friday until 2.00pm Saturday alone and without other assistance.  I find that there is not an unacceptable risk of Z coming to harm in that time. 

15. Otherwise, in terms of the orders, the family therapy should be at the equal expense of the parties and, order number 12, the therapist there should not be nominated.  As to Dr G or Dr H, it may well be the Mother could choose either of those as her therapist.  However, the Mother should be at liberty to choose the therapist she must attend.  If she unduly shops around to get a sympathetic therapist who will simply tell her what she wants to hear, that is a matter that will, ultimately, end up contrary to her interests and not advance her in the case. 

16. Otherwise, this case is coming back before the Senior Registrar on 5 November 2021.  There has been no attempt to review that and I am assuming that that was to give the therapy an opportunity to work for review of the overall living arrangements and I will not interfere with those arrangements, otherwise, and they sound sensible. 

17. This is a case that fits within category number 1 of Re K (1994) FLC ¶92-461 which Victoria Legal Aid will fund an Independent Children’s Lawyer. I will also add reserving liberty to the Independent Children’s Lawyer to apply in regard to any matter that he or she sees fit upon appointment.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       29 July 2021